Mixed Signals and Subtle Cues: Jury Independence and Judicial Appointment of the Jury Foreperson

Imagine that you are falsely accused of a serious crime and that you are now on trial before a judge and jury. You knew before the trial began that the judge had a reputation as a “law and order” judge, as a judge who was not at all receptive to the arguments of most criminal defense attorneys. You have been watching as the judge and your attorney have been engaged in what appears to be an adversarial battle throughout the trial, but you have taken some comfort in the fact that it will be the jury, not the judge, who will make the factual determinations with respect to your case. As is typical, you and your attorney are more comfortable with some of the jurors than with others, but you hope that one of the jurors in whom you have more faith will become the foreperson and that he or she will control the deliberation process. You also hope that some of your less favored jurors may ultimately be designated as alternate jurors and, therefore, be excluded from the deliberation process. After the judge has instructed the jury on the law, much to your surprise, the judge hand-picks one member of the jury to be the foreperson, exempting that juror from possible designation as an alternate and effectively guaranteeing that that juror will play a dominant role in the deliberation process. What is not surprising, from your point of view, is that the judge has appointed the juror that you and your attorney – and probably the judge as well – have viewed as the most antagonistic to the defense. You believe – with some significant justification – that the judge has inappropriately interfered with the jury’s deliberative process. You also believe – again with some significant justification – that the judge has violated your right to have a fair and impartial jury decide the facts of your case. But can these beliefs be successfully litigated in an appellate court? These are the issues that this article seeks to address